Re: Scholarly communication, copyright, and fair use

[Sandy Thatcher <sgt3@psu.edu>]

My answer is the first comment on Kevin's blog.

"True, the mostly "factual" nature of academic works would weigh 
in favor of finding use of them to be fair, but Kevin"s analysis 
of incentives leaves out a key fact: academic authors' chief 
incentive is to advance scholarship in their fields and, by doing 
so, gain tenure and promotion. But this requires a process of 
peer review, which to date has been paid for and managed by 
academic publishers and most especially because their peer review 
process for monographs is the most thorough and complex 
university presses. Someone has to pay for this service.

"If Kevin favors having it fully subsidized, that's all to the 
good. But the reality is that universities are showing no signs 
of wanting to do so, despite the rhetoric about "open access," 
and thus income streams must be generated to pay the costs. These 
streams include charges for use of massive amounts of materials 
in course packs and e-reserve systems like Georgia State's. What 
is happening in these systems is no "value added" or anything 
that might be construed as "transformative" (under the first 
factor) but simple production of more copies the way any pirate 
press would produce more copies to distribute in the marketplace 
in competition with the original publishers. I'm all in favor of 
pushing the application of "transformative use" more in academic 
contexts because that, as Judge Pierre Leval famously said, is 
the true "heart" of fair use as it was traditionally construed, 
as an insurance that later scholars could build on earlier 
scholars and advance the progress of knowledge, which is the 
Constitutional purpose of copyright law, after all.

Sanford G. Thatcher
Executive Editor for Social Sciences and Humanities
Penn State University Press
8201 Edgewater Drive
Frisco, TX  75034-5514
e-mail: sgt3@psu.edu
Phone: (214) 705-9010
http://www.psupress.org



>Interesting blog entry from Kevin Smith at Duke University. He 
>makes a case that fair use should be applied more liberally to 
>academic works (e.g., in course packs and electronic reserves) - 
>because the authors generally don't write them intending to 
>profit monetarily...they write them to disseminate their 
>research and ideas. He argues that "the court should look very 
>careful at why the works in question were created in the first 
>place and focus a fair use finding on the incentives for 
>creation and not extraneous claims for windfall profits made by 
>secondary copyright holders."
>
>http://library.duke.edu/blogs/scholcomm/2009/08/13/choosing-between-reform-and-revolution/
>
>Bernie Sloan